Dying In Dignity Mensa Sig News Journal Vol 3 Issue 2


The Tort of Negligence at the End of this Century

Chris Docker

The law on negligence plays a great part in governing how patients' refusals of treatment are handled. Chris Docker suggests it is need of overhaul... (Note: this article has been slightly shortened from its original formats. Comments are welcomed to the author at exit@euthanasia.cc.)

Introduction

What I shall attempt to argue in this paper is that negligence has developed an overloaded framework that disguises bad law, and I will suggest that, if the evolution of the common law fails to mutate the tort of negligence to accommodate changing needs within modern society, then statutory adjustment may be desirable. Would that statutory embodiment should prove unnecessary but, unless the necessary reform can be achieved within the current system, some such shake up may be necessary.

Antiquated law[1] is attempting to deal with the technology explosion of the last fifty years and the attendant need for information and ethical awareness. Non-medical problems, that are more a question of ethics or resources, are being treated as if they were medical. The tests which the law attempts to apply (e.g. "Bolam"[2], best interests[3]) are controversial and in need of overhaul. I will argue that one of the best ways to tackle an accessible part of this problem would be to separate out ethical from purely medical concerns.

Medical negligence occasions vast expenditure from the public purse, yet there is low confidence that it attains the degree of justice that it should.[4] It is estimated that the sorely pressed NHS[5] spent upward of £45m on medical negligence claims in 1990.[6] There is no doubt that most of these claims were time-consuming, expensive and potentially destructive, many of them bettering neither patient or doctor.[7] The figure had risen to £150m by 1995[8] and looks set for further increase.[9] These costs are a considerable drain on healthcare and, even though there is still much debate over whether costs can be sensibly reduced, it is important that we also look at how those costs are distributed and whether such distribution can be achieved more fairly. Negligence does not simply cover applying medical technique badly, it includes failing to give appropriate information to a patient before obtaining consent,[10] and it is to this latter category[11] that I particularly wish to turn.[12] It is different from medical diagnosis and treatment inasmuch as it a more distinctly ethical, rather than medical, issue. With increasing technology[13], it is an area that will assume increased importance, not less, as we approach the next century. There may be little reason to suggest that a patient should not benefit from more appropriate expertise in these matters, simply because it is not readily available under the present system.

There have, of course been many proposals and attempts to overhauling the whole of the tort of medical negligence,[14] adopting a "no-fault" system, or implementing many less drastic changes across the board, such us with the very recent paper of Lord Woolf.[15] Unfortunately, although a tort of negligence may be an imperfect means of compensating for wrong,[16] other options may be even less desirable,[17] and some of the supposed advantages of alternate systems have not been borne out by practice.[18] The debate is clouded by popular beliefs: although some claims are undoubtedly ill-advised[19] and patients are becoming more inclined to go to court, there is evidence, for instance, that too few, rather than too many, claims result in a successful action.[20] What needs to be done is to separate out the groups of wrongs currently handled as negligence and build more appropriate procedures and standards to assess them. Recent steps to promote mediation,[21] for instance, or augment the powers of the General Medical Council,[22] or modifying judicial procedures,[23] tackle specific aspects in relative isolation and can be thought of as improvements to the present system[24] that may reap lesser or greater rewards (and may themselves also need further refinement). These smaller, specific measures have the great advantage of being implementable rather than major, sweeping alterations, that not only might fail from using too large a brush but from the lack of parliamentary time needed for proper debate of such extensive bills.[25]

It is one thing to acknowledge that doctors may lack ethical expertise, even if they are, with beneficent intentions, often capable of disguising moral decisions as clinical judgements; (this need not infer moral culpability on the doctor: someone whose training is overwhelmingly concerned with the diagnosis and treatment of organic illness cannot easily acquire or display the conceptual and interpersonal skills that a truly informed consent[26] demands.[27]) it is then quite another thing to demand that they suddenly acquire that expertise,[28] and perhaps not even entirely reasonable: we encourage nurses to acquire proficiency in many areas of medicine for instance, but we don't expect them to double up as doctors. There are times when a doctor will practice better medicine from an awareness of medical ethics, but that does not make her an ethicist - in fact there might even be a conflict of interests between the two roles. I am thinking of a nurse or ethicist particularly as a patient advocate[29], concentrating on patient values that may seem at odds with priorities of diagnosis, treatment and resource allocation. Of course, often the courts will encompass this role, but it could be argued that this could, in some instances, merely be exchanging medical paternalism for legal paternalism.

As these areas are non-medical ones, strictly speaking, we might argue that in some instances, such as information-giving and withdrawal of treatment decisions, the tort of negligence should be patient-centred rather than medical team -centred.

It is perhaps the point made by Lord Mustill when he ventured:

...I venture to feel some reservations about the application of the principle of civil liability in negligence laid down in Bolam v. Friern Hospital Management Committee... I accept without difficulty that this principle applies to the ascertainment of the medical raw material such as diagnosis, prognosis and appraisal of the patient's cognitive functions.[30] Beyond this point, however, it may be said that the decision is ethical, not medical, and that there is no reason in logic why on such a decision the opinions of doctors should be decisive.[31]

Yet the British courts have long retained the emphasis on doctors' duty in questions of information disclosure, as Professor McLean pointed out in her seminal work on the subject,[32] and they have done so possibly at the expense of emphasising what Lord Scarman in Sidaway[33] called "a basic human right" relating to the right to make one's own decisions - and the fact that "the doctor's duty arises from his patient's rights" not vice versa. The courts' protection of human rights is more basic and far-reaching than the handling of medical scenarios and so its significance is not to be underestimated.[34]

A danger of medicalisation of the law becomes apparent, for instance, in the inconsistencies of judgements such as that of Lord Browne-Wilkinson, who, whilst advocating a prudent patient position in Sidaway[35] makes the error of calling information "advice" when he lumps together "diagnosis, advice and treatment."[36] The typical bias is thus introduced: doctors presenting information in the way that they would persuade the patient. This further tips the scales in what is already an uneven balance; as Freidson observed:

It is my impression that clients are more often bullied than informed into consent, their resistance weakened in part by their desire for the general service if not the specific procedure, in part by the oppressive setting they find themselves in, and in part by the calculated intimidation, restriction of information, and covert threats of rejection by the professional staff itself.[39]

Bias, if any,[40] should actually, be that of the patient. Some attempts to enhance this have met with little success against a backdrop of medical paternalism or bureaucratic lethargy. Much is talked about informed consent, but it remains, in practice, little more than a quasi-ethical platitude.[41] Not only is informed consent a concept that has no formal standing in British law,[42] but consent is frequently obtained, quite legally, without the disclosure of information that is ethically required for such consent to be valid. Lord Donaldson, in his historic judgement in Re T, suggested that forms[43] used for patient refusal and consent could enhance patient awareness[44] of possible consequences by "different and larger typeface, by underlining, the employment of colour print or otherwise.[45] Yet the Department of Health came up with little improvement other than window dressing and "added verbiage".[46] In a more constructive vein, the Law Society in conjunction with the BMA more recently came up with arguments about 'enhancing capacity': "Doctors should be aware both that medical disabilities can fluctuate and that there are many factors extraneous to a person's medical disorder which may adversely influence capacity. It is the duty of the assessing doctor to maximise capacity"[47] They suggest that capacity can be enhanced as much as possible by treating secondary symptoms, by carefully considering the time and place for vital communication, third party considerations, and a suitable time scale and supportive framework for digesting the information before a decision is required.[48] Competence to consent is as important as the information on which to make a decision about consent or refusal. Some of these simple, very human approaches[49] can be seen in the better pre-natal clinics, particularly for pregnant women contemplating the possibility of a child with Downs syndrome; but even in this area facilities vary widely across the country and are sometimes non-existent.[50]

The notion of informed consent probably grew out of the concern for research subjects and a perceived need to minimize the potential for harm,[51] but as it became reinforced with the growth of, and demand for, patients' "rights",[52] it may have taken on a mantle which it can ill-support.

Without much exaggeration it can be said that all of medical ethics is but a footnote to informed consent. It is the concept that first called medicine out of its paternalistic slumber and into the open light of public scrutiny. Informed consent serves as the foundation upon which answers to new questions and problems are constructed. Informed consent is a kind of doctrine, that is, an amalgam of legal and philosophical reasoning with a conceptual framework and a number of specific prescriptions. This framework entails a few basic actions and presupposes certain conditions. At the heart of the doctrine is the legal principle that "the right of a competent person to refuse medical treatment is virtually absolute." The exercise of this right presupposes that the patient must receive all information relevant to the decision to undergo or forgo a proposed treatment and that he or she must comprehend the information. The legal principle indicates that the patient needs to be competent and it is relatively freely made. Although influence is acceptable, all forms of coercion are beyond the pale.[53]

We can go on to look at the limitations of the doctrine with a view to refining it, but that process cannot effectively start until we address the basic anomaly of the law in Bolam, that makes one person (the patient) the apparent decisionmaker, and another person (the doctor acting in accordance with an accepted body of medical opinion) the ultimate arbiter of that very information needed to make the decision.[54] In other words, developmental progress for patient advocacy, or reconceiving the contextual basis of autonomy (as examined by Hardwig[55] and Kuczewski[56] and others) will be wasted effort until the fundamental loophole is corrected. One cannot improve on, or enhance patient autonomy, if the very basis for that autonomy is effectively denied by simplistic application of common law.

There has been some hope that the common law would gradually come to refine its use of the Bolam test, using it, quite reasonably it might be argued, as a benchmark for assessing negligence in matters of medical technique, and avoiding it for cases of information disclosure. Sadly the practice has been dilatory to say the least.

Bolam was cited, for instance to justify an action against a surgeon who failed to warn a patient that an operation to treat rectal prolapse might mean that the 28 year old man would be unable to have sexual intercourse. The fact that the case was won for the plaintiff, arguably by such misappropriated case law, did little to establish patients' rights on a more secure footing.[57]

One might suggest that emphasis on rights rather than duties is hair-splitting, but the practical implementation demonstrates a more marked difference. In many cases, effective assertion of patients' rights requires advocacy - someone to be there in the patient's corner. Many patients entering hospital will seem to be "capable", but the reality is that their effective assertiveness may be limited by disease or injury and the attendant stress and worry, not to mention the business-like atmosphere encouraging him to "do as he's told" as he lies helpless in a hospital bed. Psychologically, the dice are weighted against the patient. It seems no small coincidence that in the currently popular vogue for "living wills" or "advance medical directives" the only well known instances where these documents have been or would have been followed are where there was a patient advocate - either in the form of a determined relative[58 ]or in the form of the courts.[59]

It would be too easy to say that the role of patient advocate should be taken on more formally by nurses. Although there is a place for this, greater formalisation could lead to greater conflict between nursing and medical professions, possibly within the same healthcare team.[61] Ad hoc arrangements might work - we are generally looking at the careful application of basic human qualities of communication that may be overlooked or overstretched in a professional setting. But the importance of informed consent is so great that more secure provision should perhaps be made. A statutory duty on health care facilities to provide a surrogate patient advocate[62] where none was available would better serve this end. The level of skill required should be commensurate with the dilemmas likely to be faced, but there might be an increased role for a hospital ethicist, perhaps even with professional liability.[63] Such a system, particularly in the current arrangement of NHS trusts, might also go some way to standardising negligence claims, reducing costs both by easing the identification of liability and by reducing the incidence of information-disclosure negligence. NHS Trusts might make savings on the latter count, but even if ease of access to litigation resulted in the savings being absorbed, a more equitable system would have at least seen national resources better spent.

The basics of negligence should be retained - duty of care - breach of that duty - resultant damage. Merely the reliance on the Bolam test should be changed. So, in Goorkani v. Tayside Health Board (O.H.) [1991] SLT 94, the result would probably be the same, as it seems Mr Goorkani would have chosen the same treatment, even if he had been informed about the risk of infertility, in order to preserve his eyesight. However, in Gold v. Haringey Health Authority [1987] 2 All ER,64 the result would probably have been the opposite, as the appeal court, relying heavily on Bolam, overturned the lower court's decision to award damages in negligence to a woman who had undergone a sterilisation to avoid further pregnancy, without sufficient warning from the physician of the failure rate of the operation, and without being given information about the alternative of a vasectomy for her husband. In allowing the appeal, Brown LJ also drew selectively on Sidaway, agreeing with Lord Dipcock's rather simplistic view that the general duty of a doctor is "not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply." This decision is cognate with similar reasonings in Blyth v. Bloomsbury Health Authority [1993] 4 Med LR 151 (CA) and, in Scotland, in Moyes v Lothian Health Board [1990] SLT 444 1 Med LR 463.

The legal change should be supported by social and other measures to enhance capacity and increase patient advocacy. Social changes that are not supported by a fundamental shift in the law relating to standards of information giving could result in forms, promises and guidelines that are not worth the paper they are written on. As West expressed it:

The entire process will be for naught if all we accomplish is to change the old saw from "The operation was a success, but the patient died," to "The patient died, but his physician stayed within the practice guideline."65

Summary

If there is not a reversal of common law trends to follow the Bolam principle in deciding claims for medical negligence where information disclosure is at issue, then statutory or declaratory guidance should be devised. When patient autonomy has been thus enabled by adequate information, it should be enhanced and protected by such measures as availability of patient advocates of various types to give varying categories of support, independent of the medical staff if necessary.

References

1."Negligence derives from trespass by way of the action of the case, and like all derivatives of case, it is actionable only on proof of damage, i.e. not per se. However, the modern tort of negligence, arising from breach by the defendant of a legal duty of care owed by him to the plaintiff, takes its origin from the early nineteenth century. Since then it has developed in "disconnected slabs" - Candler v Crane Christmas & Co (1951) - so that even today it exhibits little generality." Tyas J.G.M., Law of Torts, 2nd edition, Macdonald and Evans 1973:58. Ibid: "It has also been said that negligence 'properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing': Lochgelly Iron Works & Coal Co. v. M'Mullan (1934), per Lord Wright. This is the modern definition."

2.The so-called "Bolam" test, based on the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, indicates that a doctor is not negligent if he or she acts in accordance with a school of thought accepted at the time as reasonable by a responsible body of medical opinion, even though other doctors adopt a different practice. This has been the subject of common law debates in many jurisdictions (some of which have rejected it altogether) and also within the UK, for instance, when the judges in Sidaway v. Governers of the Bethlem Royal Hospital and Maudsley Hospital and Others [1985] 1 All ER 643 (HL) had considerable differences of opinion on it. A detailed discussion occurs in McLean S., A Patient's Right to Know - Information Disclosure, the Doctor and the Law. Hants: Dartmouth 1989:104-122. Classic alternative doctrine to the Bolam test is presented in the District of Columbia Circuit Court of Appeals case of Canterbury v. Spence 464 F 2d 772 (DC, 1972); and the Canadian case of Haughian v Paine [1987] 37 DLR (4th) 624 (Sask CA), for instance, illustrates that the doctor's duty should extend not only to disclosing all relevant risks but also, in principle, to alternative forms of treatment.

3.The concept of "best interests" was subject to some overhaul by the Law Commission, but their proposals have not been passed into law (Law Com No 231, Mental Incapacity, London:HMSO 1995:44-48). Problems with the standard are discussed in Docker C., "Limitations of the 'Best Interests' and 'Substituted Judgement' standards" Dying In Dignity Mensa Sig News Journal 1996;3(1):9-15 (previously submitted in the Ethics Module for M.Phil 1996). A glimpse of the problem can be seen in Veatch: "For a clinician to guess at what is the best course for the patient, three assumptions must be true regarding a theory of the good. First, the clinician must be expected to determine what will best serve the patient's medical or health interest; second, the clinician must be expected to determine how to trade off health interests with other interests; and third, the clinician must be expected to determine how the patient should relate the pursuit of her best interest to other moral goals and responsibilities, including serving the interests of others and fulfilling any moral duties she may have that happen to conflict with her interest." Veatch R., "Abandoning Informed Consent" Hastings Center Report 1995;25(2):5-12,p.7. A philosophical examination of current shortcomings can be found in: Degrazia D., "Value Theory and the Best Interest Standard" Bioethics 1995;9(1):50-61.

4."The Legal Aid Board itself has said 'There is no incentive on the solicitor to act as a responsible filter for dubious cases, as there is no effective sanction available for shoddy work or bad cases being taken.'" Barton A., "Law: Making the system work for patients" The Independent 14 Feb. 1996.

5."... an independent inquiry into the funding of health care, headed by Sir Duncan Nicol, a former NHS chief executive... published on September 19th by Healthcare 2000, a cross-party health research group, points to the widening gap between the demands for health care and the resources available to pay for it. Growing expectations, advances in high-tech medicine, and an ageing population have made it impossible for the NHS to fulfil its original mandate of providing a comprehensive free service for everyone." The Economist "Paying for the NHS" 23 Sep. 1995, p.48. Also, ibid.: "Currently 80% of the £42 billion ($65 billion) a year spent on health is provided by the state through general tax revenues; 15% comes through private insurance, and only 5% from charges for drugs, equipment and other services. Britain's spending on health, at just over 7% of GDP, is among the lowest in Europe, largely because less is spent privately in Britain than in other European countries. America spends a hefty 14% of GDP on health."

6. "There is no shortage of evidence that claims against doctors in the United Kingdom for professional negligence have increased markedly over the last decade. The cost of this is considerable: in 1990 the NHS spent approximately £45m on such claims, paying damages of over £300,000 in some 35 cases." - Mason J., McCall Smith A., Law and Medical Ethics, 4th edition, Edinburgh: Butterworths 1994:191. "Litigation for medical negligence was estimated to cost the UK National Health Service more than £60 million in 1990/91 and the cost has been rising steadily since." - Vincent C., Young M., Phillips A., "Why do people sue doctors? A study of patients and relatives taking legal action" Lancet 1994;343:1609-1613,p.1609. "Since our work was completed a recent parliamentary answer by the secretary of state for health indicated that in England for 1990-1 and 1991-2 the number of claims settled was 1618 and 1751 respectively, at a total cost of £53.2m and £51.3m respectively." - Fenn P., Hermans D., Dingwall R., "Estimating the cost of compensating victims of medical negligence" British Medical Journal 1994;309:389-391,p.390, referring to Hansard 1994 March 14:2398 (No 1648).

7."There is no doubt that actions by patients against doctors are unusually time-consuming, expensive and potentially destructive." Mason J., McCall Smith A., op. cit., supra, p.192. Also: "Feeling responsible for injuring a patient appears to be one of the main sources of stress for over-worked juniors, and litigation can be a distressing and damaging experience." - Vincent C., Young M., Phillips A., op. cit., supra, p.1609.

8."The NHS paid out £150m last year, a sum set to rise fast..." - Toynbee P., "Legal leeches are bleeding the NHS" The Independent 28 Feb. 1996. Also: "Payouts by hospitals have risen... to £125m ($195m) in 1994-95. This is just the beginning: another £1 billion-worth of claims are in the pipeline." The Economist "Doctors in the dock" 19 Aug. 1995:51-52,p.51.

9."The 49 first wave trusts, established in 1991, have already accumulated potential liabilities of £10m each. And after 10 years, when the settlement of claims are expected to peak, some trusts could face claims of £250m. There are now 412 NHS trusts established since the NHS and Community Care Act 1990. ... And medical negligence claims could soar because of a new 'conditional fee' scheme to be introduced by the Government." - Waterhouse R., "Health trusts 'face huge claims for negligence'" The Independent 9 Mar. 1995.

10.As a concept, "consent" is already a loaded word, whether it be "informed" or not. It means approval or agreement with the actions or opinions of another, and elicits synonyms such as "acquiesce" and "condone". For an examination of some radically different approaches, see Veatch R., "Abandoning Informed Consent" Hastings Center Report 1995;25(2):5-12, pp.11 & 12.

11.For a breakdown of the categories of alleged acts of negligence, including failure to inform or educate, see: LaRae I., Huycke R., Mark M., Huycke M., "Characteristics of Potential Plaintiffs in Malpractice Litigation" Annals of Internal Medicine 1994;120(9):792-798,p.794.

12.As a principle, the separating of ethical from medical decision-making also applies to such areas as end-of-life decisions (eg about withdrawing nutrition and hydration from patients in persistent vegetative state). There is not room to go into this in the current paper, but see Mclean S., (ed) Death, Dying and the Law, Hants: Dartmouth 1996, especially pages 49-66, 4-8, and p.149n18.

13."...partly because physicians can 'never say never,' partly because of the seduction of modern technology, and partly out of misplaced fear of litigation, physicians have increasingly shown a tendency to undertake treatments that have no realistic expectation of success." Jecker N., Schneiderman L., "Medical Futility: The Duty Not to Treat" Cambridge Quarterly of Healthcare Ethics 1993, 2:151-159,p.151.

14.E.g. The National Health Service (Compensation) Bill, introduced by Mrs Rosie Barnes MP in 1991, which would have created a no-fault compensation scheme (The Bill failed to get a second reading). For a history and examination of some attempted reforms, see "Reforming the Law of Malpractice" in: Kennedy I., Grubb A., Medical Law: Text with Materials 2nd edition, London:Butterworths 1994;508-565.

15. Lord Woolf's interim report, Access to Justice, is published on the Internet at http://ltc.law.warwick.ac.uk/woolf/woolf.html.

16."The tort system does not differentially punish bad doctors but rather causes any doctor, whether she is at fault or not, a great deal of trouble, anxiety and inconvenience" Campbell A., Gillett G., Jones G., Practical Medical Ethics, Oxford: Oxford University Press 1992;150.

17."... the figures indicate that if a no fault scheme was introduced the cost might be four times that of the current system, depending on the type of scheme adopted." - Fenn P., Hermans D., Dingwall R., "Estimating the cost of compensating victims of medical negligence" British Medical Journal 1994;309:389-391,p.389.

18."The experience of legal counsel to the Medical Protection Society in New Zealand (where an Accident Compensation Scheme has been in operation since 1974) is that their workload on behalf of the Society members has progressively increased." - Palmer R., "Legal action and medical negligence" Lancet (Letters) 1994;343:484.

19. "The Lord Chancellor's Green Paper admits legal aid 'allows assisted parties to pursue cases which turn out to be unmeritorious, often at the expense of unassisted opponents." Barton A., "Law: Making the system work for patients" The Independent 14 Feb. 1996.

20."According to a Harvard Medical School study published in the New England Journal of Medicine in 1991, only one out of eight patients injured through a medical malpractice file a claim." May T., "Tort Reform: Is the System Broken?" The Daily Reporter Part 3 Dec 28, 1995; http://www.sddt.com/~columbus/Files2/9512281.html.

21. "In September, the first medical negligence case to go to mediation here, under a pilot scheme to be evaluated by the Department of Health, was settled. It showed, if extended nationwide, potential savings of millions to the NHS in legal costs." Donaldson L., "Law: Sometimes it's good to talk" The Independent 29 Nov. 1995.

22."The GMC has been given greater power to punish doctors, but, less sensibly, its procedures are still conducted behind closed doors" The Economist "Nasty medicine for British medics" 19 Aug. 1995, p.16.

23. "'I am very anxious that the playing field for litigation should be as level as possible,' he says. 'There are often cases, medical negligence for example, where the plaintiff cannot afford a trial involving multiple expert witnesses duplicating the same work. In that sort of situation, the procedural judge would have a very significant decision to make. He would have to decide whether the plaintiff is right and the case could produce a reasonably just result in the way he proposes. The alternative would be to do it in a much more elaborate way. The judge will say to the defendant who has much more substantial means, "If you want to do it in that more elaborate way, you've got to pay (even if you win) the difference between doing it on an affordable basis and doing it on an unnaffordable basis."'" - Ward S., "Let the legal revolution begin: Stephen Ward finds Lord Wolf confident that his list of proposed reforms will bring about a change of culture in the courtroom and will give the little man a fair chance" The Independent 6 Mar. 1996. Also, ibid.: [The reform package is] "...published in July; the Lord Chancellor has already promised to implement it."

24."Mediation and arbitration do not purport to avoid conflict but are less adversarial and thus enhance the prospects of early resolution with preservation of the therapeutic relationship. They are not alternatives to litigation but complement the present system." Barton A., "Legal action and medical negligence" The Lancet (Letters) 1994;3433:674.

25.E.g. The National Health Service (Compensation) Bill, vide supra.

26.For an examination of the meaning and development of the doctrine of informed consent see, for instance, Robertson G., "Informed Consent to Medical Treatment" Law Quarterly Review 1981;97:102-126, or, historically as an ethical construct, see Beauchamp T., Childress J., Principles of Biomedical Ethics 4th Edition, Oxford: OUP 1994,p.142-146. Its value in the present paper lies in the fact that it stems from a respect for individual decision-making: whether we regard this from a rights-based Kantian argument of treating patients as ends in themselves rather than as means to an end, or utilitarian arguments along the lines of JS Mill of allowing individuality in order to maximise beneficial outcomes for the overall good.

27.See also: Teff H., "Consent to Medical Procedures: Paternalism, Self-Determination or Therapeutic Alliance?" Law Quarterly Review 1985;101:432-453,p.451-452, and p.441.

28.This is not to say that medical ethics is not being increasingly taught. "We wish, however, to correct the impression given by Mary Kearns that doctors who pass through Edinburgh University Medical School have not studied medical ethics. ... In the pre-clinical years, students are introduced to the principles underlying medical ethics and these are related to issues of confidentiality and informed consent. The application of medical ethics then features formally as part of at least four clinical attachments, and involves particular consideration of issues surrounding dying and euthanasia, human genetics, fertility, abortion and decision-making." - Boyd K., Thomson D., Porter M., Watson G., Fleming S., "Medical ethics" The Scotsman (letters) 25 May 1996. Yet in the history of medicine there can be observed, for instance, a bias against truth-telling both in the disclosure of information and in admitting fault, and that this is inconsistent with public morality and that of other professions is apparent. Solicitors, for instance, are "obliged by the rules of professional conduct to inform a client if they have acted negligently or improperly in the performance of their work. This is not incumbent on ... the surgeon or physician who tends you in ill health..." - Napley D., "The ethics of the professions" Law Society Gazette 1985;82:818-825, quoted in Gillon R., Philosophical Medical Ethics, Chichester: John Wiley & Sons 1995;pp.168-169. Sometimes the law does not seem overly tolerant at this lack: "How much and what sort of information should be given to the patient? Where there has been a mishap the patient must be told. Where in giving treatment by injection a needle was broken, without negligence, and left in the patient's body, it was held to be negligent not to tell the patient of the presence of the broken needle (Gerber v Pines, 1933, 79 S.J.13...)" - Carrier J., Kendall I., Medical Negligence: Complaints and Compensation, Gower 1990. Truth-telling, as a basic principle (even one requiring exceptions), has generally been absent from medical codes even from the time of Hippocrates.

29."Suppose a nurse ... discovers that a patient has been prescribed twice the normal dose of a drug. Although he is dubious he gives it anyway, claiming that his only responsibility is to administer drugs as prescribed by the doctor. If the dose is incorrect, this nurse considers that it is the doctor's fault and not his. this stance conflicts with the idea of a nurse as an autonomous practitioner and patient advocate. The UKCC encourages nurses to act as advocates for patients and defines advocacy as being 'concerned with promoting the well-being and interests of patients and clients'. ... The nurse remains morally and legally accountable for his own actions and if he fails to clarify the situation, then it must be assumed that he has good reasons for giving the drug or has chosen to disregard the fact that he is accountable. He will have difficulty justifying either option." Fletcher N., Holt J., Brazier M., Harris J., Ethics, Law and Nursing, Manchester: Manchester University Press 1995;p.113.

30.The patient's "cognitive functions" should perhaps be left out of this list. See Re C [1994] 1 FLR 31, infra.

31.Airedale NHS Trust v. Bland [1993] A.C. 835,898.

32."In sum, therefore, British courts have made no real pretence at setting anything other than a professional test for disclosure. The emphasis is on the doctor's duty and not on the patient's rights, thus making the evidence of fellow professionals of similar significance in disclosure cases as it is in cases involving the application of technical skills." McLean S., A Patient's Right to Know - Information Disclosure, the Doctor and the Law, Hants: Dartmouth 1989;p.105.

33.Sidaway v. Governers of the Bethlem Royal Hospital and Maudsley Hospital and Others [1985] 1 All ER 643 (HL),645.

34.Kennedy I. Treat Me Right - Essays in Medical Law and Ethics. Oxford: Oxford University Press 1988;p.202.

35.Sidaway v. Governers of the Bethlem Royal Hospital and Maudsley Hospital and Others [1984] 1 All ER 1018, 1033 (Court of Appeal).

36.It has been observed that Dunn LJ, in Sidaway, seemed not unreasonably led astray by this. "Thus, Dunn LJ's conclusion, that the standards of the medical profession are to be applied, begs the question by assuming that information giving is the same as advice giving. This mis-analysis is clear when Dunn LJ goes on to argue that 'in giving advice the professional man will normally refer to the advantages and disadvantages of the course which he recommends.' But this is precisely to misstate what patient self-determination is all about. Advantages and disadvantages are evaluations which only patients can make. What doctors must give is information about alternatives and consequences, including risks, thereby enabling the patient to judge for him- or herself." Kennedy I. op. cit., supra, p.183.

37.This is not easily dismissed as speculatively tainted view of beneficent medical practice. For a concrete and graphical example of subtle coercion, "particularly common in surgery that will result in ostomy of the bowel", see: Battin M., The Least Worse Death, New York: Oxford University Press 1994;pp.37-38.

38."...physicians are very well aware of their power to influence patient choices - even while preserving the appearance of obtaining informed consent. The Latinate obscurity of medical diagnosis and the overwhelming nature of too much medical information often contribute to this possibility. Thus, many physicians claim they can get patients to agree to nearly anything they propose; it is simply a matter of how the choice is framed." Battin M., op. cit., supra, p.169.

39.Beauchamp T., Childress J., Principles of Biomedical Ethics 4th Edition, Oxford: OUP 1994;p.165. [quoting Eliot Freidson, The Profession of Medicine, New York:Dodd, Mead & Co 1970;376.]

40.Even arguments limiting such bias will mostly attempt to respect someone's "autonomy" other than that of the doctor infringing the autonomy of someone else, as for instance, in the controversial case of Re S (adult refusal of treatment) [1992] 4 All ER 671, (1992) 9 BMLR 69, when the patient's autonomy in refusing a Caesarian was overruled in favour of respecting the hypothetical autonomy or will-to-live of the unborn foetus (referred to in the judgement as the "unborn child").

41.The BMA, for instance, says: "Patients can only make valid choices on the basis of shared information about diagnoses, prognoses and realistic treatment options." (British Medical Association, Medical Ethics Today, London: BMA 1993;p.177) yet give little or no guidance on how such information is to be shared. Some practical suggestions are made in McNulty C., "Mentally Incapacitated Adults and Decision-making: a psychological perspective" Medicine, Science & the Law 1995;35(2):159-164, viz: "The phrases 'simple language' and 'broad terms' are ambiguous. To be of assistance, these phrases need to be operationalized in a way that leaves no room for uncertainty." (p.161), and: "Other practical techniques for assisting a person to engage in decision-making include the presentation of information in non-verbal formats: for example, Carson (1993) suggests breaking information down into discrete units and perhaps employing flow charts and diagrams."(p.162).

42.For an overview of how an attempt to introduce the doctrine into English law was rejected, see: Thomson J., Delictual Liability, Edinburgh: Butterworths 1994, p.13.

43. Consent forms are only one means of obtaining consent, but have their place if designed with consideration of the ethical dynamics involved. They cannot, of themselves, be a substitute for interactive giving of information, no matter how much information is contained on them. A consent form does not take into account what facts might be most important to that particular patient. Neither does it explain facts in the way that that patient might have reasonably have desired. "Truthfulness is not the bald communication of facts: it is the kind of sensitivity to individual need which knows that there is a time to speak and a time to remain silent." - Campbell A., Gillett G., Jones G. Practical Medical Ethics, Oxford University Press 1992;p.27.

44.Why is "enhancing awareness" important if a patient is presumed competent? One reason might be that: "An autonomous person who signs a consent form without reading or understanding the form is qualified to act autonomously by giving an informed consent, but has failed to do so." Beauchamp T., Childress J., Principles of Biomedical Ethics 4th Edition, Oxford: OUP 1994;p.121.

45.In re T. (adult: refusal of treatment) WLR 6 [1992] 782, 798, discussed in: Docker C., (1996) "Advance Directives/Living Wills" in McLean S. (ed.), Contemporary Issues in Law, Medicine and Ethics, Hants: Dartmouth; p.189.

.46.For a discussion of the 1991 revisions, see Brazier M., "Revised Consent Forms in the NHS" (1991) in Kennedy I., Grubb A. Medical Law, Text With Materials, 2nd edition, London:Butterworths 1994;pp.96-97, which also includes a copy of the Department of Health specimen form (alternatively for the latter, see Jones M., Morris A., Blackstone's Statutes on Medical Law, London: Blackstone Press 1992;p.345.)

47.The British Medical Association and the Law Society, Assessment of Mental Capacity - Guidance for Doctors and Lawyers, London: BMA 1995;pp.95-96.

48.The adjunct of advocacy, and back-ups for assessing competency, is discussed in: Van McCrary S., Terry Walman A., "Procedural Paternalism in Competency Determination" Law, Medicine & Health Care 1990;18(1-2)108-113,which is concerned (p.108) with the danger that: "...once the... [competency evaluation process] has been initiated, the bureaucratic procedural forces, combined with the inconsistencies between theory and practice, in many cases gather sufficient momentum that they are impossible to halt short of a determination of incompetence."

49.Anecdotal evidence suggests that sensitive procedures for pre-natal information-giving have been developed with good results in some clinics. Many emotional factors need to be considered, and a brief introduction can be found in: Brazier M., Medicine, Patients and the Law, 2nd edition, London: Penguin 1992;p.247:"Pre-Pregnancy Advice and Genetic Counselling". Also in: Goldworth A., "Informed Consent in the Human Genome Enterprise" Cambridge Quarterly of Healthcare Ethics, 1995;4:296-303,p.298:"Adequate Informed Consent and Patient Autonomy". An introduction to some of the more complex questions raised in such scenarios, including the responsibilities of autonomous individuals, can be found in: Steinbock B., McClamrock R., "When Is Birth Unfair to the Child?" Hastings Center Report 1994;24(6):15-21. And also in: Botkin J., "Fetal Privacy and Confidentiality" Hastings Center Report 1995;25(5):32-39.

50.For a fuller discussion of capacity and competency see especially: Drane J., "The Many Faces of Competency" Hastings Center Report April 1985;17-21,p.19, which suggests a sliding scale model for competency and, for an examination of precise capacity to make decisions about medical treatment, see Re C [1994] 1 FLR 31,31 where it was decided that C, a chronic paranoid schizophrenic, had capacity to make refusal-of-treatment decisions.

51.Beauchamp T., Childress J., Principles of Biomedical Ethics 4th Edition, Oxford: OUP 1994;p.142; also Mason J., McCall Smith A., Law and Medical Ethics, 4th edition, Edinburgh: Butterworths 1994:237-238; also Randall F., Downie R., Palliative Care Ethics, Oxford: Oxford Medical Publications 1996;p.5.

52. Beauchamp T., Childress J., ibid.

53.Kuczewski M., "Reconceiving the Family - The Process of Consent in Medical Decisionmaking" Hastings Center Report 1996;26(2):30-37,p.30.

54.Nor is there is sufficient incentive, with the law as it stands, for the doctor to select information with the patient's viewpoint uppermost: "...it is the physician who identifies the problem, frames any suggested solution to it, and controls how many alternative solutions are proposed. The patient cannot know whether the problem could be seen in some other way or as some different sort of problem, whether other sorts of solutions could be proposed, whether in making the choice to give or withhold consent he or she is making a choice among all the reasonable alternatives, and, sometimes, whether there really is any problem at all. The agenda is, so to speak, entirely in the control of the physician." Battin M., The Least Worse Death, New York: Oxford University Press 1994;p.170.

55.Hardwig J., "SUPPORT and the Invisible Family" Hastings Center Report 1995 July/August, Special Supplement: G22-G25. also: Hardwig J., "The Problems of Proxies with Interests of Their Own: Towards a Better Theory of Proxy Decisions" Journal of Clinical Ethics 1993 Spring: 20-27. also: Hardwig J., "What About the Family" Hastings Center Report 1990 March/April:5-10.

56.Kuczewski M., supra, and also: Kuczewski M., "Whose Will Is It, Anyway? A Discussion of Advance Directives, Personal Identity, and Consensus in Medical Ethics" Bioethics 1994;8(1):27-48.

57.Smith v. Tunbridge Wells Health Authority [1994] 5 Med L.R.334, discussed in Keown J., "Easing the burdens on medical plaintiffs?" Cambridge Law Journal 1995;54(1):30-32,pp.30-32. Keown goes on to note: "Smith can be one of the very rare cases in which a doctor had been held liable in negligence even though acting in accordance with a practice accepted as proper by other competent colleagues."

58."When a Living Will Worked! - The Story of Albert Goodheir" Voluntary Euthanasia Society of Scotland Newsletter 1996;16(2):10.

59. In the UK, these instances have largely been cases of when a living will would - or could - have worked, had one been written. E.g. Airedale NHS Trust v. Bland [1993] A.C. 789,894 per Lord Mustill (Obiter).

60. The need is for greater communication, not for whistleblowing, as seen, for instance in R. v. Cox [1994] 12 BMLR 38,45. (Staff Nurse recognised that a doctor had administered "a lethal dose of potassium chloride" to a woman dying in unrelievable pain and reported the fact, regrettably if quite correctly, to her superiors.)

61.For an example of how life and death differences become apparent in decision-making from different information bases, see: Walker R., Schonwetter R., Kramer D., Robinson B., "Living Wills and Resuscitation Preferences in an Elderly Population" Archives of Internal Medicine 1995;155:171-175:- "The group with living wills desired less CPR in scenarios involving functional impairment and cognitive impairment, but not in scenarios involving current health, severe illness, and terminal illness. After receiving CPR information, both groups changed their preferences such that intergroup differences were no longer seen. ... Cardiopulmonary resuscitation information can influence preferences even among persons with living wills, implying that preferences are neither fixed nor always based on adequate information."

62."To make decisions with your doctor you need to know as much as possible about your health care. Ask your doctor about what you don't understand. Your other health care providers, such as your nurses, social workers, therapists, and chaplains, are also very good sources of information." VA Medical Center, "Advance Directives - Making Decisions About Your Health Care" 1993 VA Medical Center, Seattle, p.1.

63.Another possibility might be a person trained in law: "As people with AIDS lie dying, they do not only need physicians, medical technicians, nurses, and social workers. They often also need the services of professionals who provide legal care." - Herb A., "The Hospital-Based Attorney as Patient Advocate" Hastings Center Report 1995;25(2):13-19,p.13. The Times points out that "an increasing number of nurses and other health workers are retraining to become lawyers" and the UK now has a Nurses in the Law Association (Nila), one of whose main aims is to recognise and promote the additional skills which former nurses bring to the law (Bawdon F., "Lawyers with a bedside manner" The Times 12 Dec. 1995)

64.An excellent discussion of the lamentable decision in this case can be found in Kennedy I., Treat Me Right, Oxford: Clarendon Press 1988, p210-211.

65.West J., "Risk Management and Medical Practice Guidelines: What Is Risk Management's Proper Role?" Journal of Healthcare Risk Management 1994;14(3), reproduced at http://www.wp.com/hcla/summer1.htm.


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